Mushtaq Ahmad Sheikh vs State of J & K

Petitioner was engaged as Laboratory Assistant by the Chief Medical Officer, Baramulla. The order of his engagement reads as follows:

OFFICE OF THE CHIEF MEDICAL OFFICER BARAMULLA. ORDER

In order to carry on the work at PHC Rohama Block Dangiwacha, one Sh. Mushtaq Ahmad Sheikh S/o Sonaullah Sheikh R/o Warpora Sopore,

a trained Lab. Assitant, is hereby appointed as substitute Laboratory Assistant at PHC Rohama Block Dangiwacha for a period of 80 days only in

the pay scale of 12002040 on usual allowances admissible under rules. The Block Medical Officer, Dangiwacha will allow the appointee to join

only after proper verification of the required certificates requires for the purpose in original.

No: Est1/537071 Sd/

Dt: 05021997 Chief Medical Officer

Baramulla.

Copy to the:

Block Medical Officer, Dangiwacha for information and necessary action.

Sh. Mushtaq Ahmad candidate, for compliance.

The relief sought in the petition is that respondents be directed (1) to allow him to continue on the post till selection is made by the competent

authority; (2) to release his pay, and emoluments in his favour; and (3) to prohibit from terminating his services;

Mr. Kawoosa on the other hand submitted that since the appointment has been made by a person not authorised to make such engagement

under law, the petitioner is not entitled to any of the relief claimed by him. The order of his appointment, being illegal and void, the petitioner has no

right to continue on the post.

The only point involved for consideration is whether petition is maintainable, It will depend upon whether Chief Medical Officer was empowered

to make such temporary engagement/appointment. The power to make temporary appointment under Rule 14 of the J and K Civil Services

(Classification, Control and Appeal) Rules of 1956 vests only in the Chief Minister. This rule reads as follows:

Temporary appointment: (1) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been

foreseen, to fill immediately a vacancy in a post born on the cadre of service, class or category and the making of an appointment to such vacancy

in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may

appoint a person otherwise than in accordance with these rules but such temporary appointment shall in no case exceed three months on each

occasion.

(2) Every appointment made under subrule (1) together with all the particulars relating to the persons so appointed, namely, the date of

appointment, the duration of the vacancy and the period or periods, if any, for such the same person had previously held a post home on the cadre

of the same service, class or category, the nature of the emergency or inconvenience and the reasons for the appointment, shall be reported without

delay to the ""MinsterinCharge, if the order is passed by a lower authority.

(3) A person appointed under Subrule (1) shall be replaced as soon as possible by a member of the service or a candidate qualified and

considered fit to hold the post under these rules.

(4) A person appointed under subrule(l) shall not be regarded as a probationer in such service, class or category, or be entitled, by reason only of

such appointment to any preferential claim to future appointment, to such service, class or category:

Clearly, therefore, such appointments even in order to carry on the work, can be made only by following the procedure prescribed in Rule 14 of

the CSCCA Rules. The Chief Medical Officer Baramulla had thus no authority to make the appointment and if that be so as it really is none of the

reliefs prayed for can be granted in view of the decision of the Apex court in State of Jammu and Kashmir and another Vs. Latif Ahmad Wani and

others, Civil Appeal No: 5302 of 1997, decided on August 04,1997, holding that:

.... The submission of the learned counsel for the appellants is that the order regarding appointment of the respondents are fictitious in the sense

that they have been passed by a person who was not authorised to make such appointments. In case any such orders of authorities are of the

mature as claimed, it will be open to the appellants to take appropriate action for the cancellation of the said orders and in that event it will be open

to the respondents, if they are so advised, to assail the validity of the said orders in the appropriate forum. The impugned order of the High Court,

restraining the appellants from terminating the services of the respondents, is modified in those terms and the appeal is disposed of accordingly. No

order as to costs.

The facts of the case being identical the respondents are free to cancel the appointment and petitioners will be entitled to challenge the same in

accordance with law

In view of the above, this writ petition is dismissed.